ROBBYN SCOTT, f/k/a TULLY v. MICHAEL TULLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4377-09T2

ROBBYN SCOTT, f/k/a TULLY,

Plaintiff-Appellant,

v.

MICHAEL TULLY,

Defendant-Respondent.

_____________________________________________

March 31, 2011

 

Submitted February 22, 2011 - Decided

 

Before Judges Kestin and Newman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-496-94.

 

Ned P. Rogovoy, attorney for appellant.

Albino, Ullmann, Laemers & Pompelio, L.L.C., attorneys for respondent (Peter J. Laemers, of counsel; Megan E. Clark, on the brief).

 

PER CURIAM

Plaintiff Robbyn Scott, f/k/a Tully, appeals from an order denying her motion for reconsideration of a prior order of the Family Part. Plaintiff contends that the trial judge should have ordered discovery and a plenary hearing in connection with her application to require defendant, Michael Tully, her former husband, to contribute to the college expenses, both past and future, on behalf of their son, S.T. She had also asked the court to determine a percentage contribution for the college expenses of their twins, a boy and a girl, who were likely to attend college in the near future. Plaintiff had also sought discovery related to defendant's income in response to his request for recalculation of his child support obligation, and as it may bear upon the college contribution issue.

We are satisfied that the issue of the contributions to the oldest son's college expenses should have been the subject of a hearing and reverse on that issue. We affirm on the other grounds previously mentioned.

Plaintiff and defendant have three children, the oldest son born in April, 1988, and the twins born in November, 1992. Plaintiff receives weekly child support for all three children.

Plaintiff indicated that the oldest son is interested in a law enforcement career as a State Trooper in the state of Pennsylvania. He attended Atlantic Cape Community College following graduation from high school. Two weeks before the son matriculated, plaintiff requested that defendant contribute to the tuition, which he refused to do. Plaintiff paid $8,621 in tuition with no contribution from defendant.

In the fall of 2008, the oldest son enrolled at Temple University. Prior to his actual enrollment, he inquired of his father whether he could reside with his father so that he could take advantage of a tuition reduction as an in-state student. According to plaintiff, tuition and other charges were $12,336 in the fall of 2008, and $11,719.37 in the spring of 2009. In the fall of 2009, the tuition was $12,114. Plaintiff signed for student loans in the amount of $27,871.73, with a minimum monthly payment required in the amount of $93.17. Plaintiff's son's rent is $555 per month, with a one-time fee of $225 for a security deposit and other expenses in connection with the rental of the apartment.

Plaintiff had requested that she be reimbursed in a proper percentage for the tuition she paid to the community college, existing student loans, and for any future loans necessary to complete her son's education.

Defendant had responded, by way of his certification, that he was not a party to "any discussion about college attendance or selection until" a decision had already been made and his son "was already registered to attend." Defendant acknowledged that he did have a conversation with plaintiff when she called two weeks before their son was to begin classes at the community college and requested that defendant contribute to the bill. He declined to do so, noting that he had not been involved in any discussion before the decision was made, and that there was no provision when the judgment of divorce was entered requiring any contribution toward college education.

Defendant certified that he had no reasonable expectation that he would be asked to contribute to the children's college costs and, as a result, he did not make any financial arrangements for that purpose. He also acknowledged that his son did ask about living with him to qualify as an in-state resident when he decided to attend Temple University; however, his son ultimately decided to live on campus, and then secured an off-campus apartment. Defendant claims he had no involvement in his son's choice of living arrangements. Defendant acknowledges that mail from his son's school comes to his address in Pennsylvania and that he had received a report of his son's grades for the 2008 fall semester. He is not aware of any financial aid applications or whether his son has sought or received grants, scholarships, or loans.

Defendant has, however, provided an incentive program for his son through a grade bonus system at a maximum level for an A-plus grade, under which his son would receive fifty points times the factor of nine for an award of $450. This grade bonus system descends to where his son would receive only $2 for a C- minus grade.

In denying any college tuition contribution, the trial court enumerated the twelve factors to be considered under Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). The court did not analyze the various factors under Newburgh, but considered that "a non-custodial parent may not have to pay their share of college expenses if there was a breakdown in the parent-child relationship and the non-custodial parent was not consulted as to what college the child wants to attend," pursuant to Gac v. Gac, 186 N.J. 535 (2006). Here, the court pointed out that the older son had already begun school and that "[i]t appears from the assertions of both parties that [D]efendant and [the son] have little to no relationship." The court also stated that "both parties state that Defendant was not consulted as to [their son's] choice of college."

Plaintiff subsequently moved for reconsideration. In denying the motion for reconsideration, the trial court commented that plaintiff merely reiterated arguments previously made. Plaintiff had, in relevant part, once again requested that there be a plenary hearing focusing on the Newburgh factors and Gac principles.

On appeal, plaintiff raises the following issue for our consideration:

THE DENIAL OF PLAINTIFF'S REQUEST FOR DISCOVERY AND A PLENARY HEARING TO CREATE A RECORD IN THE TRIAL COURT FOR THE APPLICATION OF THE NEWBURGH FACTORS AND GAC PRINCIPLES WAS ERROR.

 

Plaintiff argues that a plenary hearing was necessary for the trial court to properly address all of the Newburgh factors, which it failed to do. Plaintiff asserts that the Gac factors are to be considered with the twelve Newburgh factors and that analysis was not performed by the trial court. We agree with plaintiff's contentions and reverse.

The Court in Gac applied the Newburgh factors, but struck a balance in favor of the party resisting contribution because the request was made after the educational expenses were incurred. Gac, supra, 186 N.J. at 545-47. Gac, however, did not establish a test independent of the Newburgh factors, but rather made "a fair evaluation of the Newburgh factors," as well as the factors in N.J.S.A. 2A:34-23(a), in view of "the lateness of the application," to deny plaintiff's request for defendant's contribution to his daughter's college loans. Id. at 548.

Here, no such analysis was undertaken. Nor was there any attempt to flush out all the information necessary to properly and fairly evaluate the Newburgh factors. Unlike in Gac, supra, 186 N.J. at 546-47, there was a request for contribution before the parties' older son first began classes at the community college and a request for a percentage contribution toward the student loans while he was still attending college at Temple University. The son's education is still an ongoing process so that the lateness factor relied upon in Gac is absent here. See id. at 546-48.

Furthermore, with regard to the relationship between defendant and his son, the record reveals that defendant provided airline tickets for his son to visit him when he was working for Harrah's Entertainment in Las Vegas before he returned to live in Pennsylvania. He also entertained his son's request to live with him while he attended Temple University until his son decided to live on, and later off, campus. Defendant further provided an incentive bonus program to encourage his son to achieve better grades during his course of studies at Temple University. There is no certification in the record from the son indicating that he is estranged from his father. The record, in its present form, shows that there has been some communication, which could be more fully developed at a plenary hearing.

We are convinced that the trial court has read the Gac opinion, 186 N.J. 535, in a very restricted way without recognizing the equitable considerations that underlie that decision. In so doing, the court made no attempt to analyze each of the Newburgh factors, which was done by the Court in Gac on a full record developed through a hearing. See Gac, supra, 186 N.J. at 539-40. We are persuaded that the trial court was mistaken in not ordering a plenary hearing on the issue of the contribution sought from defendant towards his older son's college expenses. We leave it to the trial court to determine whether any discovery is necessary on this issue.

R

eversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.